The Regional Court of Cologne (33 O 59/22) today issued an interim injunction ordering the International Paralympic Committee to admit French para snowboarder Cecile Hernandez Cervellon to the women’s banked slalom and cross slalom competitions in Beijing in the LL-2 class, although she herself belongs to the LL-1 class, a class for athletes with a more severe degree of impairment. There will be no competitions in the LL-1 class in Beijing. This is the second time in a month that the IPC has lost a nomination rights dispute in court.
Brenna Huckaby, the US Para snowboarder, who is also represented by WIESCHEMANN Rechtsanwälte, had already won the legal dispute against the IPC for admission before the Higher Regional Court of Düsseldorf in a judgement of 20 January 2022. However, she also only received the formal admission of the IPC after WIESCHEMANN Rechtsanwälte had threatened enforcement of the judgement of the OLG and had the enforceable copy served by the bailiff.
Although the case of Cecile Hernandez is in every respect comparable to that of Brenna Huckaby, the IPC refused her participation in the Paralympics on 12 February 2022 at the request of the Comité Paralympique et Sportif Francais – expressly contrary to the judgement of the Düsseldorf Higher Regional Court, because this contradicted “the wording of the rules of the IPC and the decision of its Governing Board”.
WIESCHEMANN Rechtsanwälte had already filed an application for an interim injunction on 2 February 2022, which was decided by the Regional Court of Cologne on 16 February 2022. The Canadian Paralympic Committee joined the proceedings on behalf of the IPC because it considered the chances of its own female athletes in the LL-2 class to be “seriously endangered”. This is all the more remarkable as these same athletes had already spoken out in favour of Brenna Huckaby and Cecile Hernandez participating in the Games in Beijing in November 2021 in a petition that had gone unheeded by the IPC.
The Regional Court of Cologne did not share the opinion of the IPC and the CA PC and agreed with the application of WIESCHEMANN Rechtsanwälte and the Higher Regional Court of Düsseldorf. The right to participate results from the Act against Restraints of Competition (Anti Trust Law), the refusal of admission is an abuse of a dominant position which unreasonably hinders the athletes.
This is already apparent from the IPC’s own rules, which this fails to recognise. The athletes do not seek an unfair sporting advantage because their impairments under the IPC’s own rules are more severe than the impairments that result in classification in the SB-LL2 class. Classification in SB-LL1 is based on a significant impairment of the lower limbs, whereas classification in SB-LL2 requires a less significant impairment. This follows from the Classification Rules and Regulations of the World Para Snowboard.
According to their rules and regulations, the IPC can also allocate starting places almost arbitrarily. (p. 8 “Beijing 2022 Paralympic Winter Games Qualification Regulations”: “Redis-tribution of unused qualification slots) The rejection of the application in favour of the athletes only with reference to their classification is therefore a “sham” justification. In fact, the decision is arbitrary.
It was also never apparent why the participation of Brenna Huckaby and Cecile Hernandez would reduce the chances of victory for the athletes in Class LL-2 because they have a lower degree of impairment and thus a structurally higher probability of winning. The IPC and CA PC will not want to argue that the rule system would serve to protect the stronger from the weaker. The argument would turn the prohibition of discrimination and the task of inclusion into its opposite and is obviously unlawful.
The system of classifications according to the type and degree of impairment is still necessary to maintain fairness in competition in Paralympic sport. However, the federations seem to have forgotten what purposes it is intended to serve. It is to protect the potentially weaker and to enable participation – not prevent it.
Both proceedings have made it clear that the IPC is more loyal to the wording of its own regulations and the decision of its Governing Board, whose motives no one knows, than to the judgement of a German higher court. It is left to the public to judge such a self-image.
We would like to take this opportunity to thank our colleague Benjamin Peyrelevade, Avocat à la Cour,Paris, for his commitment and support at all times. It was a pleasure for us.
In the end, the most important thing. Good luck to both athletes. Brenna and Cecile. You will have to do the rest yourselves. The faster one will win …..